One hundred thirty-four. That’s the number of countries that currently criminalize or prosecute people based on general criminal laws of HIV transmission, non-disclosure, or exposure.
Not only is this contrary to science on the health and human rights benefits of decriminalization, but it stands in stark contrast to the commitments enshrined in the 2021 Political Declaration to ends AIDS by 2030, which was adopted by the United Nations General Assembly with 165 countries voting in favor. Worse still is that criminalizing HIV is actively harmful: it costs lives and wastes money.
Countries that criminalize people with HIV have lower rates of HIV treatment and viral suppression compared to those with non-discriminatory legal frameworks. For example, evidence shows that decriminalizing sex work would avert at least one-third of new HIV infections among female sex workers.
Sex workers, along with men who have sex with men, transgender people, people who inject drugs and their sexual partners, and others represent key populations at higher risk of acquiring HIV. Together, they bear the brunt of the HIV pandemic: 70% of new HIV cases in 2021 occurred among these populations, accounting for more than half of all new cases in sub-Saharan Africa for the first time.
People-centered, equity-first policies that enable access to HIV services must be scaled up. To end AIDS as a public health threat, the world needs to achieve the UNAIDS 10-10-10 targets: less than 10% of people living with HIV and key populations experiencing stigma and discrimination; less than 10% of people living with HIV, women and girls, and key populations experiencing gender-based inequalities and gender-based violence; and less than 10% of countries with legal and policy environments that deny or limit access to HIV services.
The United Nations Development Programme, which I work for, has convened the Global Commission on HIV and the Law to help countries and communities dismantle discriminatory laws that unjustly punish people, trap them in a cycle of illness and poverty, and prevent progress toward ending AIDS.
To date, the commission’s recommendations have helped at least 90 countries advance legal reforms. While no country is on track to meeting the 10-10-10 targets, the actions of these 90 countries show that change is possible. I offer three concrete strategies to drive further progress based on lessons learned from decriminalization efforts.
First, a whole-of-society approach led by people living with HIV and key populations has proven the most effective path to change. Laws are shaped and enforced by complex networks of parliamentarians, law enforcement, lawyers, and judges. Changing laws and removing barriers requires engaging these authorities and sensitizing them to the lived realities of HIV-positive people and key populations. Conducting government-led participatory legal environment assessments, which meaningfully engage communities, has been successful in advancing legal reform, including decriminalization of HIV.
In 2019, the UNDP worked with Zimbabwe to conduct a legal environment assessment, which identified criminalization as a barrier to health care and a driver of stigma. Based on these results, stakeholders including Zimbabwe’s National AIDS Council, Zimbabwe Lawyers for Human Rights, parliamentarians, civil society activists and key populations worked to advocate for decriminalization. In early 2022, Zimbabwe repealed its legal code criminalizing HIV.
Second, a well-informed judiciary is often key to protecting the rights of vulnerable people and laying the groundwork for more inclusive legal systems. Ensuring that judges have up-to-date information on the science of HIV results in more informed rulings and drives positive change. This includes preventing overly broad interpretation of the law, such as Covid-19 lockdown policies that were used to justify the arrest of 23 people at a shelter for homeless LGBTQ+ youths in Uganda. Many of them were later released by the order of a Ugandan court.
Safe spaces for peer-led conversations can be a critical venue for disseminating this kind of information. The UNDP supports regional networks of judges in Africa, Europe and Central Asia, and the Caribbean. These forums provide an opportunity to share the latest knowledge on HIV science, public health, law, human rights, and the lived experiences of key populations. The results speak for themselves: In July, the high court of Antigua and Barbuda struck down its laws criminalizing sex between consenting same-sex adults.
Third, decriminalization must be complemented by the creation of legal environments that actively safeguard human rights and protect vulnerable communities from stigma and discrimination. Access to legal services is a cornerstone of an enabling legal environment, but only 41% of countries report having mechanisms to connect people living with HIV and key populations to services. This disconnect with legal services has a real effect. In a survey of people in 18 countries, over the last 12 months less than 50% of people living with HIV whose rights were abused sought legal redress.
Civil society organizations, like the Caribbean Vulnerable Communities Coalition and Andrey Rylkov Foundation for Health and Social Justice, play essential roles in delivering services to and advocating for people living with HIV and key populations. But countries are increasingly passing laws that restrict the ability of these kinds of non-governmental organizations to operate. In 2019, 50 countries had drafted legislation or implemented laws that prevent NGOs from performing their work. Since then, restrictive legislation has continued to appear, in Mexico, Tunisia, and elsewhere. The UNDP is working with multiple stakeholders on strategies to create an open civic space and legal environments which allow full engagement of civil society.
Efforts to halt the spread of HIV and to care for people living with it are far less effective in countries that criminalize people living with HIV and key populations, and decriminalization efforts are moving far too slowly. There is, however, cause for hope. At the recently-concluded 24th International AIDS Conference in Montreal, there was a sense of renewed purpose, solidarity and a recognition of the need to urgently advance decriminalization efforts.
If the world does not act on the science now; move toward decriminalizing and stop prosecuting people for HIV transmission, non-disclosure, or exposure; and deliver on its obligations, it won’t be possible to end AIDS as a public health threat by 2030.
Mandeep Dhaliwal is the director of the HIV and Health Group for the United Nations Development Programme.